In order to guide the implementation of the Government’s Decree No. 11/2016/ND-CP on foreign nationals working in Vietnam, the Ministry of Labor, Invalids and Social Affairs of Vietnam (“MOLISA”) has recently released a Draft Circular (“Draft”). Outlined below are notable points of the new draft:
Conditions for “service providers pursuant to a contract” and “persons offering services”
Under the Draft, “Service providers pursuant to a contract” are defined as foreign nationals who: (i) have worked for an offshore entity which has not had a commercial presence in Vietnam for at least two years; and (ii) satisfy the conditions for experts/specialists.
Concurrently, “Persons offering services” are foreign nationals who: (i) are not located in Vietnam; (ii) do not receive any remuneration from any source in Vietnam; or (iii) participate in activities related to the representation of a service provider to negotiate the sale of its services as long as these foreign nationals do not directly sell services of the service provider to the public or participate in providing these services.
Work permit withdrawal process
The Draft also sets out clearer guidance on the process for work permit withdrawal.
Withdrawal due to expiration:
- Within 15 days from the expiration date, the employer is able to withdraw and submit a checklist of the withdrawn work permits to the Department of Labor, Invalids and Social Affairs (“DOLISA”); and
- Within five days from receiving the expired work permits and the relevant checklist, the competent authority shall provide a written affirmation of work permit withdrawal for the employer.
Withdrawal due to violations of regulations on foreign employees’ management:
- To commence the withdrawal process on this basis, there must be written recommendations and a report on violations issued by the competent authorities;
- Within 10 days from the date of receiving the written recommendations and report on violations, the competent authorities have the right to consider, decide and provide notice to the employer regarding the validity of their attempt to withdraw the given work permit(s); and
- Within 15 days from the date of receiving the decision on withdrawal, employers may withdraw the work permits and commence a process identical to the withdrawal due to expiration process.
Quarterly, prior to the fifth day of the first month of the next quarter, the employer must submit a report to a competent authority on its use of foreign employees. The Draft provides seventeen templates for its implementation.